Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s threats of legal action for obstruction of a footway. This is because the complaint concerns a dispute over the extent of the public highway which the courts are better placed to deal with.

The complaint

1. The complainant, Mr X, complains the Council has failed to engage with him about its claim that part of his garden is highway land. He is concerned that if he removes part of his hedge as the Council wants, he may still be liable to maintain the land.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and invited his comments.

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What I found

4. The Council contacted Mr X in 2020 asking him to remove a section of his hedge which it said was obstructing a footway. Mr X called the Council to dispute its suggestion as he says the land is his. He says the Council agreed not to send him further threatening letters until it looked into the matter.
5. Several weeks later the Council wrote to Mr X again warning him of legal action if he did not remove the obstruction. Again he contacted the Council but he says he was unable to speak with anyone in detail about the issue and that no one would visit his property to discuss it.
6. The Council maintains the land is part of the public highway and that Mr X must remove the hedge or face legal action. Mr X does not agree with the Council’s view and is concerned about his liability for maintaining the land. He wants to resolve the issue and confirm liability for maintaining it.
7. The Council as the highway authority is responsible for asserting and protecting the rights of public highway users. It has powers under the Highways Act 1980 to instruct householders to remove plants or structures from the highway, including verges. Even if the householder owns the subsoil of a highway verge the authority can prevent or remove structures being placed on it.
8. The substantive issue relates to the status of the land in question and the courts are better placed to determine this issue. It is not for the Ombudsman to decide the extent of the highway or to advise Mr X about his private property rights or liability for maintaining the land.
9. While Mr X is unhappy with the Council’s refusal to engage with him or discuss the matter further these points are not separable from the dispute over the status of the land. Mr X says the Council agreed not to take further action until it had considered the matter further but it is clear it believes the land forms part of the public highway. It is therefore unlikely we could say it was wrong to seek to assert the public’s right to pass over it without considering Mr X’s dispute over its status.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because the substantive issue concerns a dispute over land ownership which the courts are better placed to deal with.

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Investigator's decision on behalf of the Ombudsman